Supreme Court of India
HARESH MOHANDAS RAJPUTversusSTATE OF MAHARASHTRA
- Citation
- 2011 INSC 700
- Decided
- 20 September 2011
- Disposal
- Disposed off
- Bench
- P SATHASIVAM
Holding
The circumstantial evidence was sufficient to uphold the conviction, but the case did not meet the "rarest of rare" criteria, so the death sentence was unwarranted and life imprisonment was restored.
Summary
The appellant, Haresh Mohandas Rajput, was accused of raping and murdering 10‑year‑old Pooja, whose body was discovered under a cot in his house with blood‑stained sheets and forensic evidence of sexual assault and strangulation. The prosecution relied solely on circumstantial evidence, including the location of the body, blood stains, medical findings, and statements of witnesses, while the appellant’s alibi of having gone to a liquor shop was unsubstantiated. The trial court convicted him under Sections 302 and 376 of the IPC and sentenced him to life imprisonment, but the High Court enhanced the punishment to death. The Supreme Court examined whether the circumstantial evidence satisfied the stringent tests laid down in Krishnan and Sharad Birdhichand Sarda, and concluded that the chain of evidence was complete and excluded any reasonable hypothesis of innocence, thereby upholding the conviction. However, applying the "rarest of rare" doctrine and the guidelines from Bachan Singh and Machhi Singh, the Court held that the case did not merit the death penalty and restored the life sentence. Consequently, the appellant’s conviction stands, the death sentence is set aside, and the appeals are disposed.
Issues considered
- Whether the circumstantial evidence presented by the prosecution is sufficient to sustain a conviction under Sections 302 and 376 IPC.
- Whether the offence qualifies as a "rarest of rare" case warranting the death penalty.
Legislation cited
- Code of Criminal Procedure, 1973s. 313
- Indian Evidence Act, 1872s. 106
- Indian Penal Code, 1860s. 302, s. 376
Subjects
rapemurdercircumstantial evidencedeath penaltyrarest of rarelife imprisonmentminor victimIPCsentencingcriminal law
Judgment
[2011] 14 (ADDL.) S.C.R. 921
HARESH MOHANDAS RAJPUT A
v.
STATE OF MAHARASHTRA
(Criminal Appeal Nos. 2030-2031 of 2009)
SEPTEMBER 20, 2011
B
[P. SATHASIVAM AND DR. B.S. CHAUHAN, JJ.]
Penal Code, 1860 - ss. 302 and 376 - Rape followed
by murder of a minor girl by strangulation - Prosecution case
based on circumstantial evidence - Conviction of accused- C
appellant under ss. 302 and 376 /PC - Justification of - Held:
Dead body of deceased was found inside the house of
appellant-accused with blood stains under the cot - There
were blood stains on the bed-sheet and on the floor
underneath the cot - The appellant could not offer any D
explanation whatsoever as how the dead body of the victim
girl could reach his house - More so, nothing on record to
controvert the evidence of the doctor who conducted the post-
mortem and opined that there had been sexual assault on
the victim and she died of strangulation and there had been E
ligature marks on her neck -Appellant was present in his
house when police arrived there - The alibi taken by the
appellant that he had gone to a liquor shop for drinks leaving
his house open remained unsubstantiated and was found to
be false - In such a fact situation, conviction of appellant . F
affirmed - However, the case does not fall within the "rarest
of rare cases" - Punishment of death sentence awarded by
the High Court set aside and the sentence of life
imprisonment awarded by the Trial Court restored.
Evidence - Circumstantial Evidence - Appreciation of G
- Held: Though~ conviction may be based solely on
circumstantial evidence, however, the circumstances from
which the conclusion of guilt is to be drawn· should be fully
established - The same should be of a conclusive nature and
921 H 1'
922 SUPREME COURT REPORTS [2011] 14 (ADDL.) S.C.R.
A exclude all possible hypothesis except the one to be proved
- The facts so established must be consistent with the
hypothesis of the guilt of the accused and the chain of
evidence must be so complete as not to leave any reasonable
ground for a conclusion consistent with the innocence of the
s accused and must show that in all human probability, the act
must have oeen done by the accused.
Sentence! Sentencing - Death sentence - When
warranted - Rarest of the rare case - Held: "Rarest of the rare
case" comes when a convict would be a menace and threat
C to the harmonious and peaceful co-existence of the society
- The manner in which the crime is committed must be such
that it may result in intense and extreme indignation of the
community and shock the collective conscience of the society
- Where an accused does not act on any spur-of-the-moment
D provocation and indulges himself in a deliberately planned
crime and meticulously executes it, the death sentence may
be the most appropriate punishment - The death sentence
may be warranted where the victims are innocent children and
helpless women - In case the crime is committed in a most
E cruel and inhuman manner which is in an extremely brutal,
grotesque, diabolical, revolting and dastardly manner, where
the act affects the entire moral fibre of the society, e.g. crime
committed for power or political ambition or indulge in
organized criminal activities, death sentence should be
F awarded - For awarding the death sentence, there must be
existence of aggravating circumstances and the
consequential absence of mitigating circumstances - As to
whether death sentence should be awarded, would depend
upon the factual scenario of the case in hand.
G
According to the prosecution, the appellant caused
the death of a minor girl aged 10 years by strangulating
her after committing rape on her. There was no eye-
witness to the incident and the case was based on
circumstantial evidence. The trial court convicted the
H
HARESH MOHANDAS RAJPUT .v. STATE OF 923
MAHARASHTRA
appellant and sentenced .·him to undergo life A
imprisonment under Section 302 IPC and 10 years
imprisonment under Section 376 IPC. However, both the
sentences were-direeted to run concurrently. Aggrieved,
the State filed appeal for enhancement of sentence and
appellant also filed an appeal against his conviction. The B
High Court upheld the conviction and enhanced the
sentence· to death penalty.
In the instant appeals, the question which arose for
consideration was whether the prosecution case met the
requirement of proof on circumstantial evidence and the C
facts of the case warranted the imposition of death
sentence.
Disposing of the appeal.s, the Court
D
. HELD:
CIRCUMSTANTIAL EVIDENCE:
1. Though a conviction may be based solely on
circumstantial evidence, however, the circumstances E
from which the conclusion of guilt is to be drawn should
be fully established. The same should be of a conclusive
nature and exclude all possible hypothesis except the
one to be proved. The facts so established must be
consistent with the hypothesis of the guilt of the accused F
and the chain of evidence must be so complete as not
to leave any reasonable ground for a conclusion
consistent with the innocence of the accused and must
show that in all human probability, the act must have
been done by the accused. The evidence produced by G
the prosecution should be of such a nature that it makes
the conviction of the accused sustainable. [Paras 9, 10
and 11) [932-G-H; 933-C-G; 934-8)
Krishnan v. State represented by Inspector of Police
(2008) 15 SCC 430; Sharad Birdhichand Sarda v. State of H
924 SUPREME COURT REPORTS [2011] 14 (ADDL.) S.C.R
A Maharashtra AIR 1984 SC 1622 1985 (1) SCR 88; Paramjeet
Singh @ Pamma v. State of Uttarakhand AIR 2011 SC 200:
2010 (11) SCR 1064; Wakkar & Anr. v. State of Uttar
Pradesh (2011) 3 SCC 306; Mohd. Mannan @ Abdul
Mannan v. State of Bihar (2011) 5 SCC 317; Inspector of
B Police, Tamil Nadu v. John David (2011 \ 5 SCC 509 and SK.
Yusuf v. State of West Bengal AIR 2011 SC 2283 - relied
on.
DEATH SENTENCE - WHEN WARRANTED:
c 2.1. "Rarest of the rare case" comes when a convict
would be a menace and threat to the harmonious and
peaceful co-existence of the society. The crime may be
heinous or brutal but may not be in the category of
"rarest of the rare case". There must be no reason to
D believe that the accused cannot be reformed or
rehabilitated and that he is likely to continue criminal acts
of violence as would constitute a continuing threat to the
society. The accused may be a menace to the society and
would continue to be so, threatening its peaceful and
E harmonious co-existence. The manner in which the crime
is committed must be such that it may result in intense
and extreme indignation of the community and shock the
collective conscience of the society. Where an accused
does not act on any spur-of-the-moment provocation and
F indulges himself in a deliberately planned crime and
meticulously executes it, the death sentence may be the
most appropriate punishment for such a ghastly crime.
The death sentence may be warranted where the victims
are innocent children and helpless women. Thus, in case
G the crime is committed in a most cruel and inhuman
manner which is an extremely br11tal, grotesque,
diabolical, revolting and dastardly manner, where his act
affects the entire moral fiber of the society, e.g. crime
committed for power or political ambition or indulge in
H
HARESH MOHANDAS RAJPUT v. STATE OF 925
MAHARASHTRA
organized criminal activities, death sentence should be A
awarded. [Para 14] [935-D-H; 936-A]
2.2. For awarding the death sentence, there must be
existence of aggravating circumstances and the
consequential absence of mitigating circumstances. As
8
to whether death sentence should be awarded, would
depend upon the factual scenario of the case in hand.
[Para 15] [936-C]
C. Muniappan & Ors. v. State of Tamil Nadu AIR 2010
SC 3718: 2010 (10) SCR 262; Rabindra Kumar Pal alias C
Dara Singh v. Republic of India (2011) 2 SCC 490: 2011 (1)
SCR 929; Surendra Kofi v. State of UP & Ors. (2011) 4 SCC
80: 2011 (2) SCR 939; Mohd. Mannan @ Abdul Mannan v.
State of Bihar (2011) 5 SCC 317; Sudam@ Rahul Kaniraril
Jadhav v. State of Maharashtra (2011) 7 SCC 125 - relied D
on.
·Bachan Singh v. State of Punjab AIR 1980 SC 898 and
Machhi Singh & Ors. v. State of Punjab AIR 1983 SC 957:
.1983 (3) SCR 413 - referred to.
E
CIRCUMSTANCES:
3.1. Indisputably, the dead body of the deceased was
found inside the house of the appellant with blood stains
under the cot. There had been blood stains on the bed- F
sheet and on the floor underneath the cot. The appellant
could not offer any explanation whatsoever as how the
dead body of the victim girl could reach his house. More
so, there is nothing on record to controvert the evidence
of the doctor who conducted the post-mortem and G
opined that there had been sexual assault on the victim
and she died of strangulation and there had been ligature
marks on her neck. Appellant was pres.ant in his house
when police arrived there. The alibi taken by the appellant
that he had gone to a liquor shop for drinks leaving his H
926 SUPREME COURT REPORTS [2011] 14 (ADDL.) $.C.R.
A house open remained unsubstantiated and was found to
be false. [Para 6] [929-F-H; 930-A]
3.2. In such a fact-situation, there is no cogent
reason to interfere with the well-reasoned judgments of
the courts below so far as the conviction of the appellant
is concerned, and his conviction u~der Sections 302 and
8
376 IPC is affirmed. [Para 30) [944-8)
3.3. So far as the sentence part is concerned, the
case does not fall within the "rarest of rare cases". The
C High Court was not justified in enhancing the
punishment. Thus, in the facts and circumstances of the
case, the punishment of death sentence awarded by the
High Court is set aside and the sentence of life
imprisonment awarded by the Trial Court is restored.
· D [Para 30) [944-C-D]
Case law Reference:
(2008) 15 sec 430 relied on Para 9
1985 (1) SCR 88 relied on Para 10
E
2010 (11) SCR 1064 relied on Para 11
(2011) 3 sec 306 relied on Para 11
(2011) 5 sec 317 relied on Paras 11, 14
F
(2011) 5 sec 509 relied on Para 11
AIR 2011 SC 2283 relied on Para 11
AIR 1980 SC 898 referred to Para 12
G 1983 (3) SCR 413 referred to Para 13
AIR 2010 SC 3718 relied on Para 14
(2011) 2 sec 490 relied on Para 14
H (2011) 4 sec 80 relied on Para 14
HARESH MOHANDAS RAJPUT v. STATE OF . 927
MAHARASHTRA· .
(2011) 1 sec 12s relied on Para 14 A
CRIMINAL APP ELLATE JURISDICTION : Criminal Appeal
No. 2030-2301 of 2009.
From the Judgment & Order dated 11.01.2008 of the High
Court of Judicature at Bombay in Criminal Appeal Nos.1020 B
of 2001 and 401 of 2002.
D.N. Goburdhan, Prabal Bagchi, Karitka Sharma. Balendu
Shekhar for the Appellant.
Arun R. Pednekar, Sanjay Kharde, ~sha Gopalan Nair for
c
the Respondent.
The Judgment of the Court was delivered by
DR. B.S. CHAUHAN, J. 1, These appeals have been o
preferred against the impugned judgment and order dated
11.1.2008 in Criminal Appeal Nos, 1020/2001 and 401/2002
of the High Court of Bombay in which the High Court has
confirmed the order of conviction dated 19.9.2001 passed by
the Additional Sessions Judge, Pune in Ses.sions Case No.41 E
of 2000 for the offences of rape and murder, however, altered
the sentence of life imprisonment awarded by the Trial Court
to death sentence while allowing the criminal appeal cf the
State for enhancement of punishment.
2. FACTS: F
A. On 24.10.1999, Pooja, deceased, aged 10 years was
playing on the road between her house and the house of the
appellant at about 4 p.m. along with her brother Nitesh (PW.3)
and sister. She was found missing by Nitesh (PW.3) who G
searched for her but in vain. Smt. Tara (PW.1) mother of Pooja,
deceased, who had been away for work, on being informed
came back and looked around but Pooja could not be traced.
Smt. Tara (PW.1) reached the police station at 9.30 p.m. to
lodge the First Information Report (hereinafter called the "FIR"). H
928 SUPREME COURT REPORTS [2011] 14 (ADDL.) S.C.R.
A While Smt. Tara (PW.1) was still in the police station, Khushal
(PW.1 O) son of the appellant arrived at the police stat!on and
informed the police that the appellant, who was addicted to
liquor, told him that he had killed Pooja, deceased and her
dead body was lying under the cot in his house. The police
8 acted on the information and reached the spot anc;I found that
a large number of persons had gathered there and the appellant
was sitting outside his home.
B. The dead body of Pooja was recovered from the house
of the appellant and panchnama was prepared. Appellant was
C arrested and after completing the investigation, the chargesheet
was filed against him under Sections 302 and 376 of the India
Penal Code, 1860 (hereinafter called "IPC") . During the trial,
the prosecution examined a large number of witnesses in
support of its case and after conclusion of the trial, the Trial
D Court vide judgment and order dated 19.9.2001 convicted the
appellant and sentenced him to undergo life imprisonment under
Section 302 IPC and 10 years imprisonment under Section
376 IPC. However, both the sentences were directed to run
concurrently.
E
C. Being aggrieved, the State of Maharashtra preferred
the appeal for enhancement of sentence and the appellant also
filed an appeal against his conviction. The High Court vide
impugned judgment and order dated 11.1.2008 upheld the
F conviction and enhanced the sentence to death penalty, while
disposing of both the appeals.
Hence, these appeals.
RIVAL SUBMISSIONS:
G
3. Shri D.N. Goburdhan, learned counsel appearing for the
appellant, has submitted that there is no evidence on record
to connect the appellant with the crime. Circumstantial evidence
was not to the effect that it would indicate towards the guilt of
H the appellant in exclusion of any hypothesis of innocence. There
HARESH MOHANDAS RAJPUT v. STATE OF 929
MAHARASHTRA [DR. B.S. CHAUHAN, J.]
are material inconsistencies in the statements of the witnesses A
which go to the root of the case. There is no sufficient evidence
on record on the basis of which conviction of the appellant
could be recorded. However, under no circumstance the High
Court could be justified in enhancing the punishment from life
imprisonment to death sentence. Thus, the appeals deserve to B
be allowed.
4. Per contra, Shri Arun R. Pednekar, learned counsel
appearing for the State, has opposed the appeals contending
that the courts below have taken into consideration a large C
number of circumstances which stood proved to establish the _
guilt of the appellant. The dead body of Pooja, deceased, was
reco~ered from the house of the appellant. The medical report
revealed that she had been killed by strangulation after being
subjected to sexual assault. The inconsistencies in the
statements of the witnesses, if any, are of trivial nature. The D
concurrent findings of facts recorded by the courts below on the
basis of which the appellant has been convicted, do not require
any interference. The appeals lack merit and are liable to be
dismissed.
E
5. We have considered the rival submissions made by
learned counsel for the parties and perused the record.
FACTS UNDISPUTED:
6. Indisputably, the dead body of Pooja was found inside F
the house of the appellant with blood stains under the cot. There
had been blood stains on the bed-sheet and on the floor
underneath the cot. Appellant could not offer any explanation
whatsoever as how the dead body of the victim girl could reach
his house. More so, there is nothing on record to controvert the G
evidence of the doctor who conducted the post-mortem and
opined that there had been sexual assault on the victim and she
died of strangulation and there had been ligature marks on her
neck. Appellant was present in his house when police arrived
there. The alibi taken by the appellant that he had gone to a H
930 SUPREME COURT REPORTS [2011] 14 (ADOL.) S.C.R.
A liquor shop for drinks leaving his house open remained
unsubstantiated and was found to be false.
INJURIES:
7. Dr. P.O. Rokade, PW-7, conducted the post-mortem
B examination on 25.10.1999 on the body of Pooja and found the
following injuries:
1. Contused abrasion over the labia majora from the
junction behind the backwards size 1 x 0.25 cm/oblique.
c 2. Crescent marks on the labia majnora near the clitoris
size 0.25 cm.
3. Abrasion with radial from the labia minora behind and
backwards noted.
D
4. Four chit the torn radially and bruised.
5. Posterial commisure torn.
6. Hymen lacerated along 3 and 9 O'clock position.
E
Dr. P.O. Rokade (PW.7) found following injuries on external
examination:
1. Contused abrasion left frontal eminence size 0.25 x
0.25 ems. Single.
F
2. Crescent abrasion right upper lip lateral aspect size 0.5
x 0.25 cm. horizontal.
3. Contusion right ala of nose 0.5 x 0.1 ems.
G 4. Contusion right orbital plate 2 ems below the outer
canthus, size 1 x 0.25 ems. Oblique.
5. Crescent abrasion right angle of mouth 0.25 x 0.25 cm.
H
HARESH MOHANDAS RAJPUT v. STATE OF - - 931
MAHARASHTRA [DR. B.S. -CHAUHAN, J.]
6. Contused abrasion right cheek 4 in No.1 below another A
with 1 cm· apart oblique in direction of size 1.5 x 0.5 cm.
7. Ligature mark around the neck over the thyroid cartilage
extending from left sternclodomastoid upto the right
posterior triangle of neck size 15 cm. x 1.5 cm. on left and
B
1 cm. on right side.
8. Ligature mark is 7 cm. below left ear 6.5 cm. below chin
and 8 cm. below right ear and is more prominent on left
side.
c
9. Contusion right anterior triangle of neck 2 cm. x 0.5 cm.
irregular. ·
· _ 10. Crescent abr13sion over right forearmandwrist 7 in No.
of 0.1 to 0.25 cm. and 1-2 cm. apart.
D
11. Crescent abrasion left forearm and wristexternally 2
in number 4 cm. part size 0.1 to 0.2 cm.
12. Old unhealed seen over the left knee with recent scab
removal (granulate on tissue seen) size 2 x 1 cm. and 3 x ...
c
2 cm.
All the injuries were ante-mortem.
The doctor also opined that injuries to genitals mentioned
in column no. 151 may be possible due to sexual assault. There F
injuries a:S well as internal injuries n1entioned in para no. 20,
organs of generations may be possible due to rape by a fully
developed person by full penetration.
The age of the injuries was 24 hours before post-mortem G
examination. Injuries caused by finger nails referred above may
be caused in sexual assault. Injuries mentioned in column no.
3 may be possible due to resist~nce during sexual assault.
The witness further opined that Pooja was raped and then
murdered on 24.10.1999 between 4.00 p.ni. to 10.00 p.m. H
932 SUPREME COURT REPORTS [2011] 14 (ADDL.) S.C.R.
A 8. The instant case is based on circumstantial evidence
as there is no eye-witness of the incident and the High Court
has awarded the death sentence to the appellant. Thus, we
have to examine as to whether the prosecution case meets the
requirement of proof on circumstantial evidence and the facts
B of the case warranted the imposition of death sentence.
CIRCUMSTANTIAL EVIDENCE:
9. In Krishnan v. State represented by Inspector of Police,
(2008) 15 sec 430, this Court after considering a large number
C of its earlier judgments observed that when a case rests upon
circumstantial evidence, such evidence must satisfy the
following tests:
(i) the circumstances from which an inference of guilt is
0 sought to be drawn, must be cogently and firmly
established;
(ii) those circumstances should be of definite tendency
unerringly pointing towards guilt of the accused;
E (iii) the circumstances, taken cumulatively, should form a
chain so complete that there is no esca~e from the
conclusion that with all human probability the crime was
committed by the accused and none else; and
(iv) the circumstantial evidence in order to sustain
F
conviction must be complete and incapable of explanation
of any other hypothesis than that of the guilt of the accused
and such evidence should not only be consistent with the .
guilt of the accused but should be inconsistent with his
innocence."
G
Though a conviction may be based solely on circumstantial
evidence, however, the court must bear in mind the aforesaid
tests while deciding a case involving the commission of a
serious offence in a gruesome manner.
H
HARESH MOHANDAS RAJPUT v. STATE OF 933
MAHARASHTRA [DR. B.S. CHAUHAN, J.]
10. In Sharad Birdhichand Sarda v. State of Maharashtra, A
AIR 1984 SC 1622, this Court observed that it is well settled
that the prosecution's case must stand or fall on its own legs
and cannot derive any strength from the weakness of the
defence put up by the accused. However, a false defence may
be called into aid only to lend assurance to the court where B
various links in the chain of circumstantial evidence are in
themselves complete. The circumstances from which the
conclusion of guilt is to be drawn should be fully established.
The same should be of a conclusive nature and exclude all
possible hypothesis except the one to be proved. The facts so c
established must be consistent with the hypothesis of the guilt·
of the accused and the chain of evidence must be so complete
as not to leave any reasonable ground for a conclusion
consistent with the innocence of the accused and must show
that in all human probability, the act must have been done by 0
the accused. The Court also discussed the nature, character
and essential proof required in a criminal case which rests on
circumstantial evidence alone and held as under:
"(a) The circumstances from which the conclusion of guilt
is to be drawn should be fully established; E
(b) The facts so established should be consistent only with
the hypothesis of the guilt of the accused, that is to say,
they should not be explainable on any other hypothesis
except that the accused is guilty; F
(c) The circumstances should be of a conclusive nature and
tendency;
(d) They should exclude every possible hypothesis except
the one to be proved; and G
(e) There must be a chain of evidence so complete as not
to leave any reasonable ground for the con.clusion
consistent with the innocence of the accused and must
H
934 SUPREME COURT REPORTS [2011] 14 (ADOL.) S.C.R.
.
A show that in all human probability the act must have been
done by the, accused."
11. A similar view has been reiterated by this Court
persistently observing that the evidence produced by the
prosecution should be of such a nature that it makes the
8
conviction of the accused sustainable. (See: Paramjeet Singh
@ Pamma v. State of Uttarakhand, AIR 2011. SC 200;
Wakkar & Anr. v. State of Uttar Pradesh, (2011) 3 SCC 306;
Mohd. Mannan @ Abdul Mannan v. State of Bihar, (2011) 5
C SCC 317; Inspector of Police, Tamil Nadu v. John David,
(2011) 5 SCC 509;.and SK. Yusuf v. State of West Bengal
AIR 2011 SC 2283).
, DEATH SENTENCE - WHEN WARRANTED:
D 12. The guidelines laid down in Bachan Singh v. State of
Punjab, AIR 1980 SC 898, may be culled out as under:
"(i) The extreme penalty of death need not be inflicted
except in gravest cases of extreme culpability.
E (ii) Before opting for the death penalty, the circumstances
· of the offender also require to be taken into consideration
alongwith the circumstances of the crime.
(iii) Life imprisonment is the rule and death sentence is an
exception. In other words, death sentence must be
F
imposed only when life imprisonment appears to be an
altogether inadequate punishment having regard to the
relevant circumstances of the crime, and provided, and
only provided, the option to impose sentence of
imprisonment for life cannot be conscientiously exercised
G
having regard to the nature and circumstances of the crime
and all the relevant circumstances.
(iv) A balance sheet of aggravating and mitigating
circumstances has to be drawn up and in doing so, the
H mitigating circumstances have to be accorded full
HARESH MOHANDAS RAJPUT v. STATE OF 935
MAHARASHTRA [DR. S.S. CHAUHAN, J.]
· weightage and just balance has to be struck between the A
aggravating and the mitigating circumstances before the
option is exercised."
13. In MachhiSingh & Ors. v. State of Punjab, AIR 1983
SC 957, this Court expanded the "rarest of rare" formulation
8
beyond the aggravating factors listed in Bachan Singh to
cases where the "collective conscience" of a community is so
shocked ·that it will expect the holders of the judicial powers
centre to inflict death penalty irrespective of their personal
opinion as regards desirability or otherwise of retaining death C
penalty, such a penalty can be inflicted. Butthe Bench in this
case underlined that full weightage must be accorded to the
mitigating circumstances in a case and a just balance had to
be struck between aggravating and mitigating circumstances.
14. "Rarest of the rare case" comes when a convict would D
be a menace and threat to the harmonious and peaceful co-
existence of the society. The crime may be heinous or brutal
. but may not be in the category of "rarest of the rare case". There
must be no reason to believe that the accused cannot be
reformed or rehabilitated and that he is likely to continue E
criminal acts of violence as would constitute a continuing threat
to the society. The accused may be a menace to the society
and would continue to be so, threatening its peaceful and
harmonious co-existence. The manner in which the crime is
committed must be such that it may result in intense and F
extreme indignation of the community and shock the collective
conscience of the society. Where an accused does not act on
any spur-of-the-moment provocation and indulges himself in a
deliberately planned crime and meticulously executes it, the
death sentence may be the most appropriate punishment for G
such a ghastly crime. The death sentence may be warranted
where the victims are innocent children and helpless women.
Thus, in case the crime is c.ommitted in a most cruel and
-inhuman manner which is an extremely brutal, grotesque,
diabolical, revolting and dastardly manner, where his act affects
H
936 SUPREME COURT REPORTS [2011] 14 (ADDL.) S.C.R.
A the entire moral fiber of the society, e.g. crime committed for
power or political ambition or indulge in organized criminal
activities, death sentence should be awarded. (See: C.
Muniappan & Ors. v. State of Tamil Nadu, AIR 2010 SC 3718;
Rabindra Kumar Pal alias Dara Singh v. Republic of India,
B (2011) 2 SCC 490; Surendra Kofi v. State of UP & Ors., (2011)
4 SCC 80; Mohd. Mannan (supra); and Sudam @ Rahul
Kaniram Jadhav v. State of Maharashtra, (2011) 7 SCC 125).
15. Thus, it is evident that for awarding the death sentence,
there must be existence of aggravating circumstances and the
C consequential absence of mitigating circumstances. As to
whether death sentence should be awarded, would depend
upon the factual scenario of the case in hand.
16. The instant appeals are required to be decided in the
D light of the aforesaid settled propositions of law.
CIRCUMSTANCES:
17. The following circumstances have been taken into
consideration by the courts below while convicting the appellant:
E
(1) Incident occurred in the house of the appellant.
(2) Appellant was present at his house when the
children were playing.
F (3) Appellant had an opportunity to take Pooja inside
the house.
(4) During play Pooja was found missing.
(5) Nitesh (PW.3) saw Pooja in the house of the
G
appellant and asked him about it and he denied.
(6) Appellant admitted before his mother and son
Khushal (PW.10) to have killed Pooja.
H (7) Khushal (PW.10) had given information at the
HARESH MOHANDAS RAJPUT v. STATE OF 937
MAHARASHTRA [DR. B.S. CHAUHAN, J.]
Police Station that his father/appellant killed Pooja A
and put the dead body below the cot in his house.
(8) Police Head Constable G.R. More (PW.4), Ashok
(PW.2) and Deepak Jawahar Agarwal(PW.8) went
to the house _of the appellant and recovered the 8
dead body of Pooja. Explanation given by the
appellant that he had gone to liquor shop for
drinking leaving his house open was not found to
be acceptable.
(9) Recovery of rope used in the crime at the instance C
of the appellant from his house.
(10) Person other than the appellant had no opportunity
to commit the crime.
18. So far as the first circumstanclO is concerned, material D
on record reveals that:
I. Pooja's dead body was found in the house of the
appellant.
E
II. Ashok (PW.2) who took out the dead body stated that
the frock and knickers of the deceased were stained with
blood.
Ill. Clothes of the deceased were seized under
panchanama Ex.20. Panchanama also shows that the F
clothes were stained with blood. Ravindera Pa-War, PSI
who conducted this panchanama has also stated about this
fact. Cloth pieces and bed sheet as well as the frock and
knickers sent for chemical analysis.
G
IV. As per the Chemical Analysis Report, Ex.49, these
articles were having human blood.
V. The medical evidence referred earlier as well as inquest
panchanama, the admitted document, point out that Pooja H
was sexually assaulted before murder.
938 SUPREME COURT REPORTS (2011] 14 (ADDL.) S.C.R.
A VI. Spot panchanama Ex.24 stood proved through panch
witness Mohd. Sharif. This witness has stated that there
was a bed sheet on the cot a~d it was having blood stains
over it. The blood stains were also found below the cot on
the floor.
B
VII. The bed sheet as well as twci cloth pieces having blood
stains were seized by the police.
19. There is no reason to disbelieve the above evidence/
factors. Moreover, this aspect has not been challenged by the
C appellant at any stage of the proceedings. The fact that blood
was found on the bed sheet, on the cot as well as on the floor
below the cot clearly indicates that the incident occurred there
only. It is very unlikely that the culprit committed the heinous act
elsewhere and then placed Pooja's dead body in appellant's
D house.
• 20. It has come on record that after finding Pooja missing,
her brother Nitesh (PW.3) searched for her. On receiving the
information that Pooja was missing her mother Smt. Tara
E (PW.1) came and searched for her. In such a fact-situation,
where people came to know about the disappearance of Pooja
within a very short span of time, the culprit could not have had
any opportunity to transfer the body from any other place to the
appellant's house. It was on the basis of the above that the
courts below came to the conclusion that Pooja was raped and
F murdered in the house of the appellant. The appellant in his
examination under Section 313 of Code of Criminal Procedure,
1973, (hereinafter called 'Cr.P.C.), while answering Question
Nos. 27, 28 and 29 himself admitted that he was sitting outside
his house when the police arrived. The police had searched his
G house and the dead body of Pooja lying below the cot in his
house was recovered. We do not see any cogent reason to
interfere with finding of facts recorded by the courts below on
this count.
H 21. The second circumstance against the appellant had
HARESH MOHANDAS RAJPUT v. STATE OF 939
MAHARASHTRA [DR. 8.S. CHAUHAN, J.]
· been that he was present: atthe pface bf occurrence when the · A
children were playing. Both the courts below have appreciated
the evidence on record particularly deposition of Nitesh (PW.3) ·
and held that appellant was present at the place of occurrence
at the relevant time. Nothing could be brought to our notice to
contradict the findings of the courts below. Of course. the Trial B
Court did not accept the evidence of Nitesh (PW.3), 12 years
old child to the extent that the appellant had offered chocolates
to him ,and Pooja; though Pooja had accepted it but Nitesh
(PW.3) did not accept the same. The High Court while dealing
with the evidence of Nitesh (PW.3) held that the children had c
been playing .in front of his house and the appellant had called
them and given them chocolates. Discrepancy remained
regarding acceptance of chocolate by Nitesh (PW.3), which of
course, is not relevant enough for the case taking into
consideration the other circumstances. 0
22. So far as the third· circumstance is concerned, . ·
admittedly, ~ppellant had been living for along lorig time in close .
vicinity of the. house of Po<;>ja, deceased and was very well
· acquainted withJhe victim as well as herfamily members . .the .
· admitted fact remainedthat appellant's mother andsori, who E
were the other inmates of his house, had gone out to procure
the medicines to cure his addiction and on the fateful day, .
appellant was alone in his house. The children had been busy
in running here and there as they were playing hide and seek .
. Thus, it was not possible in such a fact-situation that every child F
could remain attentive on every moment about other children.
Such circumstance gives an opportunity to a person having evil
design. Thus, appellant had an opportunity to take the victim
Pooja inside the house.
G
23. The fourth circumstance stood fully proved by the
evidence on record, particularly by the depositions of Smt. Tara
(PW.1) and Nitesh (PW.3). Nitesh (PW.3) deposed that~~
Pooja had disappeared he searched for her and as he could
not find her out, he went to inform his mother Smt. Tara (PW.1 ), H
940 SUPREME COURT REPORTS [2011] 14 (ADDL.) S.C.R.
A who at that relevant time had been at Shagun Chowk. Smt. Tara
(PW.1) came back and searched for Pooja. More so, this part
of the prosecution case has never been challenged by the
defence and it stands proved that Pooja disappeared while
playing in front of the house of the appellant that evening.
B
24. The fifth circumstance had been that Nitesh (PW.3)
saw Pooja in the house of the appellant and on being asked,
the appellant denied her presence. Nitesh (PW.3) is a child
witness as at the relevant time he was 12 years of age. When
he noticed that Pooja was not seen at the place of play he
C searched for her and asked in the neighbourhood and when
he could not trace her, only then he went to inform his mother
Smt. Tara (PW.1) at Shagun Chowk and returned with her. They
both searched for Pooja and as they failed to find her out, Smt.
Tara (PW.1) went to the police and Nitesh (PW.3) stayed at
D home. Up to this extent, the prosecution case has not been
challenged by the appellant. Nitesh (PW.3) has deposed that
after his mother left for the police station, his friend came and
told him that his sister was in the house of the appellant. So,
Nitesh (PW.3) went there from the back side of the house and
E saw Pooja lying in the room. He went to one Semabai and told
her about it. Semabai entered the house from the backside of
the house of the appellant, however, could not see Pooja there.
Nitesh (PW.3) asked the appellant about Pooja but he denied
that she was there. The Trial Court after appreciating the entire
F evidence on the issue came to the conclusion that it was nothing
but an imagination of Nitesh (PW.3) and this circumstance was
not proved. We have examined the evidence of Nitesh (PW.3)
on this issue and we are of the considered opinion that
conclusion reached by the Trial Court on the issue is correct
G and does not require any interference.
25. Circumstance No.6 relates to an extr;:i-judicial
confession by the appellant before his mother and son Khushal
(PW.10) to the extent that he had killed Pooja. According to the
H prosecution, Khushal (PW.10) alongwith his grandmother had
HARESH MOHANDAS RAJPUT v. STATE OF 941
MAHARASHTRA [DR. S.S. CHAUHAN, J.J
gone to Kalyan and returned in the night and found that the lights A
of the house were off and the appellant was present therein~
The appellant became annoyed as Khushal (PW:10) put on the
lights and so Khushal (PW.10) put the lights off. When he again
put on the lights the appellant became very angry, on this the
appellant's mother came in and at that time the appellant told s
them that he had committed the murder of Pooja and
threatened them not to disclose to anybody. Khushal (PW.10)
ran out of the house, went to the police station and revealed
this fact. The prosecution examined Khushal (PW.10), however,
he was declared hostile. Appellant's mother was not examined. c
Thus, the issue of extra-judicial confession was not proved.
There is not enough evidence on record to prove this
circumstance against the appellant.
26. So far as the other part of this Issue that Khushal
(PW.10) had informed the police that the dead. body was lying D
below the cot in his house, the courts below appreciated his
evidence with full care and caution, being a hostile witness, as
Khushal (PW.1 O~,denied that he had gone to the police station
in the night and gave information. The Trial Court came to the
conclusion that evidence of Smt. Tara ' (PW.1 ), Ashok (PW.2), · E
Deepak Jawahar Agarwal {PW.8), and G.R. More (PW.4) were
enough to establish that when police was recording the
complaint of Smt. Tara (PW.1), Khushal (PW.10) reached the
police station crying and told them that his father had killed
Pooja and kept the dead body below the cot in his house. None F
of the aforesaid witnesses had any animosity with the appellant
and thus, there could be no reason to enrope him falsely. The
evidence on this point particularly, is nowhere shakened during
their cross-examination. The information was given to the police
in close vicinity at the time of commission of the crime, though G
exact time of death is not known. The courts below found the
circumstance fully proved and we concur with the said finding.
27. So far as the eighth circumstance is concerned, it
relates to the recovery of the dead body of Pooja from the house H
942 SUPREME COURT REPORTS (2011) 14 (ADDL.) S.C.R.
A of the appellant. It is admitted in view of the depositions of
Ashok (PW.2), G.R. More (PW.4) and Deepak Jawahar
Agarwal (PW.8) that the dead body of Pooja was recovered
from the house of the appellant. According to Deepak Jawahar
Agarwal (PW.8), he had gone to police static..n along with Smt.
B Tara (PW .1) and it was in his presence that Khushal (PW.10)
has reached the police station and revealed that his father had
killed Pooja and .dead body was lying below the cot. He has
further deposed that they came with the police to the house of
the appellant and entered his house. During search, Ashok
C (PW.2) father of the deceased saw the dead body. It was taken
out and put on a handcart. The appellant was standing in front
of the house and the police caught him. In the suggestion put
to him, he has denied that he was deposing falsely. Ashok
(PW.2), father of Pooja, deceased has corroborated the
evidence of Deepak Jawahar Agarwal (PW.8) fully to the extent
0 that he was also at the police station when Khushal came and
revealed the fact that his father had killed Pooja. He further
deposed that he along with the policemen, entered the house
of the appellant and recovered the dead body of his daughter,
Pooja as it was lying below the cot in the house of the appellant.
E Similarly, G.R. More (PW.4), Head Constable had deposed in
this regard that he entered the house of the appellant along with
Ashok (PW.2) and Deepak Jawahar Agarwal (PW.8). They
searched the house and saw that a girl was lying below the cot
therein. Ashok (PW.2) had taken her out. She was motionless.
F She was kept on a handcart. Appellant has admitted the
recovery of Pooja's body from his house while answering
Question No.29 in his examination under Section 313 Cr.P.C.
Thus, this circumstance to the extent that the dead body was
recovered from the house of the appellant stood fully proved.
G
The explanation furnished by the appellant that he had
gone to liquor shop for drinks leaving his house open, had to
be proved by him in view of the provisions of Section 106 of
Indian Evidence Act, 1872, which he miserably failed and the
H courts below have disbelieved him. Learned counsel for the
HARESH MOHANDAS RAJPUT v. STATE OF · 943
MAHARASHTRA [DR 8.S. CHAUHAN, J.]
appellant could not point out any single evidence on the basis A
of which a contrary inference can be drawn.
28. The recovery of rope used in the crime has been
disbelieved by the Trial Court on the ground that such ropes
were easily available in the market. Rope so recovered did not 8
contain any special mark for identification. The police had
entered the house prior to Panchanama. Therefore, it could not
be established that the same rope had been used wi1ile
committing the crime. Death was caused by strangulation.
Though the High Court has found sufficient material to believe C
the recovery of the rope but in view of the fact that there was
nothing on record to show that same rope had been used for
committing the crime, the finding so recorded by the High Court
loses significance.
29. This brings us to the next circumstance as to whether D
any other person had an opportunity to commit the crime. The
dead body was found from the house of the appellant. Any
outsider may not know that the appellant'& mother and son had
gone out and they would not return till night. The outsider must
not have an idea that house was lying open and no person was E
present inside. It is not probable that a person having no
concern with such a house would dare to take a girl inside the
house to fulfill lust and to kill her. The rape was committed on
the cot that is why blood stains were found on it. No outsider
could have committed rape so comfortably usir.g the cot in F
someone else's house. The de2d body wan round below the
cot that indicates that the accusEd attempted to con~eal the
body. Had any outsider done it, after comll'itting the crime he
would have run away leaving the dead body on the cot itself as
he would have no reason to be afraid of search and trace of G
the dead body. In fact, such a fear exists in the mind of a person
to whom the house belongs. The outsider would not make any
attempt to conceal the dead body, as his prime concern
remains to run away after commission of the crime.
H
944 SUPREME COURT REPORTS [2011] 14 (ADDL.) S.C.R
A The evidence led by the prosecution clearly establishes the
aforesaid circumstances.
30. Out of the aforesaid circumstances, only a very few
which are immaterial and are not vital to determine the case,
stood fully proved against the appellant. In such a fact-situation,
8
we do not find any cogent reason to interfere with the well-
reasoned judgments of the courts below so far as the conviction
of the appellant is concerned, and we affirm his conviction
under Sections 302 and 376 IPC.
C So far as the sentence part is concerned, in view of the
law referred to hereihabove, we are of the considered opinion
that the case does not fall within the "rarest of rare cases". The
High Court was not justified in enhancing the punishment. Thus,
in the facts and circumstances of the case, we set aside the
D punishment of death sentence awarded by the High Court and
restore the sentence of life imprisonment awarded by the Trial
Court.
With this modification, the appeals stand disposed of.
E B.B.B. Appeals disposed of.
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